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Secrets inside of secrets: Reporter's affidavit is for judge's eyes only

March 24, 2009 at 4:59 PM

Embattled Detroit Free Press reporter David Ashenfelter has submitted a sealed affidavit arguing why he shouldn't have to provide testimony in a former federal prosecutor's civil suit against the government.

In an unusual move, U.S. District Judge Robert Cleland allowed the affidavit to be submitted so that he — and no one else — can read in detail how Ashenfelter might be incriminating himself if forced to divulge the names of confidential sources and the information they provided about a government investigation into the conduct of Richard Convertino, a former federal prosecutor now suing the Justice Department in a whistle-blower suit.

Unless the affidavit convinces Cleland to overrule his earlier orders, Ashenfelter will be compelled to appear at a deposition scheduled for April 20.

Convertino wants Ashenfelter to disclose who leaked what information about a U.S. Department of Justice investigation into Convertino's conduct during the prosecution of suspected terrorists. Convertino alleges that the leak was a violation of his rights under the federal Privacy Act. He can't win his case without knowing who talked to Ashenfelter, according to his attorney.

But the journalist maintains that, along with press protections granted by the First Amendment, he also has a Fifth Amendment protection against self-incrimination. Among other things, he contends, it is possible he could be prosecuted under the Espionage Act and other federal laws if he testifies.

If Cleland doesn't reverse the course he has set so far and continues to rule that Ashenfelter must provide deposition testimony, the Pulitzer Prize winning reporter he will have to decide between violating the promise of confidentiality provided his sources or face the possibility of being fined, jailed, or possibly both.

In the absence of a federal law protecting reporters in situations like this, federal courts in other jurisdictions have nonetheless ruled reporters have some shield protections. But the Sixth Circuit Court of Appeals in Cincinnati, the next level up from Detroit's district court, has previously ruled otherwise.